Richard Marles (Corio, Australian Labor Party, Minister for Defence) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill. I move the government amendment as circulated:

(1) Page 26 (after line 23), at the end of the Bill, add:

Schedule 2 — Other amendments

Criminal Code Act 1995

1 After subsection 83.3(1) of the Criminal Code

Insert:

Defence foreign work authorisation under the Defence Act 1903

(1A) Subsection (1) does not apply to an individual in relation to conduct engaged in by the individual as part of work (within the meaning of Part IXAA of the Defence Act 1903)or training (within the meaning of that Part) that is authorised by a foreign work authorisation granted to the individual under section 115C of that Act and that is in force at the time the individual engages in the conduct.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

Defence class of individuals who are not foreign work restricted individuals

(1B) Subsection (1) does not apply to an individual if:

(a) the individual provides training (within the meaning of Part IXAA of the Defence Act 1903); and

(b) the individual is included in a class of individuals covered by an instrument in force under subsection 115(1) of that Actat the time the individual provides the training; and

(c) neither of the following apply:

(i) the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List (within the meaning of the Defence Trade Controls Act 2012);

(ii) the training relates to military tactics, military techniques or military procedures; and

(d) the training is provided to, or on behalf of:

(i) a government body (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; or

(ii) a military organisation (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; and

(e) the foreign country is a relevant foreign country (within the meaning of Part IXAA of the Defence Act 1903).

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

Defences countries that are not relevant foreign countries

(1C) Subsection (1) does not apply to an individual if:

(a) the individual is a foreign work restricted individual (within the meaning of Part IXAA of the Defence Act 1903); and

(b) the individual provides training (within the meaning of that Part); and

(c) the training is provided to, or on behalf of:

(i) a government body (within the meaning of that Part) of a foreign country; or

(ii) a military organisation (within the meaning of that Part) of a foreign country; and

(d) the foreign country is covered by an instrument in force under subsection 115(3) of that Actat the time the individual provides the training.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

(1D) Subsection (1) does not apply to an individual if:

(a) the individual is not a foreign work restricted individual (within the meaning of Part IXAA of the Defence Act 1903); and

(b) the individual is:

(i) an Australian citizen; or

(ii) a permanent resident of Australia (within the meaning of that Part); and

(c) the individual provides training (within the meaning of that Part); and

(d) either:

(i) the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List (within the meaning of the Defence Trade Controls Act 2012); or

(ii) the training relates to military tactics, military techniques or military procedures; and

(e) the training is provided to, or on behalf of:

(i) a government body (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; or

(ii) a military organisation (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; and

(f) the foreign country is covered by an instrument in force under subsection 115(3) of the Defence Act 1903 at the time the individual provides the training.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

2 Subsection 83.3(3) of the Criminal Code (heading)

Omit "other than terrorist organisation".

3 Before subsection 83.3(4) of the Criminal Code

Insert:

Exception to subsection (1B) or (3) terrorist organisation

4 Subsection 83.3(4) of the Criminal Code

Omit "However, subsection (3)", substitute "Subsection (1B) or (3)".

5 Paragraph 83.5(4)(a) of the Criminal Code

Omit "subsection 83.3(2), (3) or (4A)", substitute "subsection 83.3(1A), (1B), (1C), (1D), (2), (3) or (4A)".

These amendments to the Criminal Code are necessary to ensure consistency between the operation of this bill and section 83.3 of the Criminal Code Act 1995 which establishes an offence for providing military style training to a foreign government principle or foreign political organisation. These amendments clarify that, if a person is exempt from the new offences in the Defence Amendment (Safeguarding Australia's Military Secrets) Bill, the person will also be exempt from section 83.3 of the Criminal Code for the same conduct. I commend the amendments to the House.

Question agreed to.

Bill, as amended, agreed to.

Ordered that this bill be reported to the House with an amendment.